11 The EU and Georgia
| (a)
(35229)
12735/13
COM(13) 536
(b)
(35230)
12737/13
COM(13) 537
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Draft Council Decision on the signing and provisional application of a Protocol to the Partnership and Cooperation Agreement between the European Communities and their Member States and Georgia on a Framework Agreement between the European Union and Georgia, on the general principles for the participation of Georgia in Union programmes
Draft Council Decision on the conclusion of a Protocol to the Partnership and Cooperation Agreement between the European Communities and their Member States and Georgia on a Framework Agreement between the European Union and Georgia on the general principles for the participation of Georgia in Union programmes
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| Legal base | (a) Article 212 in conjunction with Article 218 (5) TFEU; QMV
(b) Articles 217 in conjunction with 218 (6) (a) TFEU; QMV
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| Department | Foreign and Commonwealth Office
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| Basis of consideration | EM of 22 August and EM and Minister's letter of 8 October 2013
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| Previous Committee Report | None; but see (35362-5): HC 83-xviii (2013-14), chapter 5 (23 October 2013)
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| Discussion in Council | To be determined
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| Committee's assessment | Legally and politically important
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| Committee's decision | Not cleared; further information requested
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Background
11.1 As part of the European Neighbourhood Policy
(ENP), the gradual opening-up of certain Union programmes and
agencies to the participation of ENP partner countries aims to
promote reform, modernisation and transition in the European Union's
neighbourhood. The Commission outlined this policy aspect more
extensively in its Communication of December 2006 "on the
general approach to enable European Neighbourhood Policy partner
countries to participate in Community agencies and Community programmes".[54]
The Council endorsed this approach in conclusions on 5 March 2007.[55]
11.2 Based upon this Communication and those conclusions,
the Council, on 18 June 2007, tasked the Commission with negotiating
Framework Agreements with Algeria, Armenia, Azerbaijan, Egypt,
Georgia, Israel, Jordan, Lebanon, Moldova, Morocco, the Palestinian
Authority, Tunisia and Ukraine, on the general principles for
their participation in Community programmes.
11.3 The June 2007 European Council[56]
reaffirmed the importance of the ENP and endorsed a Presidency
Progress Report[57] that
had been submitted to the General Affairs and External Relations
Council (GAERC) meeting on 18/19 June 2007, as well as the related
Council Conclusions.[58]
This report recalled the Council directives to negotiate relevant
additional protocols.
11.4 The Joint Communication by the Commission and
the High Representative of the European Union for Foreign Affairs
and Security Policy, "A new response to a changing Neighbourhood",
[59] endorsed by
Council Conclusions on 20 June 2011, further stressed the EU's
intention to facilitate partner countries' participation in EU
programmes.
11.5 In September 2011, the participants of the Eastern
Partnership's Warsaw Summit agreed to facilitate participation
by partner countries in EU programmes and agencies.
11.6 To date, Protocols have been signed with Armenia,
Israel, Jordan, Moldova, Morocco and Ukraine.
11.7 In December 2012, Georgia expressed its interest
to participate in the broad range of programmes open to partner
countries of the European Neighbourhood Policy.
The draft Council Decisions
11.8 These draft Council Decisions are aimed at enabling
Georgia's involvement in European Union programmes and agencies
through its participation in the ENP. The EU programmes in question
promote co-operation in different, specific fields and were, in
principle, originally conceived for Member States. However, the
regulations for these programmes allow for the possibility of
third country participation, provided that certain terms and conditions
are met. Each participant contributes to the specific programmes
in which they participate, and takes part, as observers, in the
management of such programmes. Those programmes are subject to
the same reporting, evaluation, control and audit requirements
as all other EU programmes.
The Government's view
11.9 In his Explanatory Memorandum of 22 August
2013, the Minister for Europe (Mr David Lidington) supports and
welcomes the proposed Protocol.
11.10 He continues as follows:
"The South Caucasus is of strategic importance
to the UK and the EU. Continued stability in this region is also
key for the UK's prosperity and energy security goals, and it
is therefore strongly in our interests that Georgia continues
along its EU path. The EU plays an important role in conflict
resolution in Georgia through the EU Special Representative for
the South Caucasus and EU Monitoring Mission that provides an
effective monitoring presence along the Administrative Boundary
Lines between Georgia and its breakaway regions. Closer political
association and greater economic integration in to the EU is the
most effective way to promote reform and modernisation in Georgia,
as well as contributing to conflict resolution.
"More broadly, the UK remains a strong supporter
of Georgia's progression towards closer ties with the EU as part
of our long-standing support to the enlargement of the EU and
strengthened ties in the Eastern Neighbourhood region.
"Georgia has just concluded negotiations on
an Association Agreement with Deep and Comprehensive Free Trade
Area with the EU, and has strong policy aims to move closer to
EU norms and standards. Participation in the policy under question,
by allowing Georgia to participate in Union programmes, would
help familiarise it with EU policies and working methods, and
allow for progressive integration into EU networks. This will,
in turn, help to encourage Georgia to drive forward with genuine
commitment and energy the reforms necessary for its long term
security and prosperity, and consequently the security and prosperity
of the EU."
11.11 Looking ahead, the Minister says:
"All of the Union programmes that Georgia is
currently eligible to participate in will need to be renewed in
the context of the 2014-21 multiannual financial framework. Furthermore
there may be other Union programmes that Georgia is not currently
eligible to participate in but under the terms of their renewal
may permit Georgia's participation. We will keep this under review."
11.12 With regard to the Legal and Procedural
Issues, the Minister says:
"The Commission has proposed using Article 212
TFEU as the substantive legal basis for adoption of these draft
Council Decisions. This is a departure from recent precedent.
For example, in relation to similar decisions relating to the
Ukraine and Armenia's participation in EU programmes the legal
bases cited covered the underlying legal bases establishing the
EU programmes themselves. The Government will therefore seek to
have the current legal basis amended by Council, in particular
by seeking to add to the draft Council Decision all substantive
legal bases for the programmes.
"The Council Decisions are likely to be discussed
in working groups in September. The UK intends to table a Minute
Statement when the decisions are adopted at Council which makes
clear that UK agreement to the future extension to Georgia of
any programmes based on Article 352 TFEU will be subject to prior
approval by Parliament."
11.13 In his supplementary Explanatory Memorandum
of 8 October 2013, the Minister then says:
"Cross-Whitehall discussions concluded that
the UK should assert its opt-in in relation to these proposed
Decisions. This is because Georgia will be eligible to participate
in two Union programmes (Fiscalis 2020 and Customs 2020) in relation
to which internal EU instruments establishing these programmes
the UK has asserted its opt-in and opted into. As a result of
the EU seeking to enter into an international agreement with Georgia
which will permit Georgia to access these programmes and which
agreement, as a result of Article 216 TFEU, is binding upon both
EU institutions and Member States our view is that the UK's opt-in
does apply to these proposals. There is continuing uncertainty
regarding which Union programmes Georgia will be eligible to participate
in as a result of the Framework Agreement."
11.14 Then, in addition to the points in paragraph
11.12 above, the Minister says:
"In particular, in light of Georgia's eligibility
to participate in the Fiscalis 2020/Customs 2020 programmes we
may seek to add Article 87(1) TFEU, as the rationale for the UK
opting into the internal EU instruments establishing these programmes
was their containing provisions prioritising the fight against
fraud. This will be subject to the UK seeking to obtain the citation
of such a legal base in relation to the EU internal instruments
seeking to establish these programmes. Such instruments do not
currently have a Title V legal base."
11.15 Finally, the Minister confirms that working
group level discussions began in late September, but also says
that it is not yet confirmed when the draft Council Decisions
will be discussed in Council.
The Minister's letter of 8 October 2012
11.16 The Minister says that, in parallel with his
supplementary Explanatory Memorandum, his letter:
"is to update you on further analysis, and is
to be considered in conjunction with the supplementary and original
EMs on this issue. It covers both the draft Council Decision on
the signing and provisional application of the Framework Agreement,
and the draft Council Decision on its conclusion."
11.17 The Minister then continues as follows:
"My officials have been working hard to ensure
that UK interests are protected in this Framework Agreement. At
the time of submitting our initial EM of 22 August, the Government
had not reached a conclusive position as to whether these measures
contained JHA content in relation to which the UK should assert
its opt-in. The programmes, to which Georgia may be eligible,
under the Framework Agreement, are in the process of being renegotiated
as part of the Multi-annual Financial Framework. Once further
clarity on the relevant programmes had been obtained this necessitated
detailed analysis as to the applicability of the opt-in.
"In particular, in relation to two programmes,
currently under renegotiation (Customs 2020/Fiscalis 2020), the
UK has opted-into the proposed EU instruments seeking to establish
them.
"I can now confirm to your Committee that it
is the Government's position that the UK's JHA opt in has been
triggered in relation to the proposed Decisions which seek to
make Georgia, inter alia, eligible to participate in Union programmes
that we assess as having JHA content."
11.18 The Minister then turns to the matter of timing:
"The timings have created a regrettable situation
in terms of your Committee's opportunity to examine the issue
of the UK opt-in in this case, for which I apologise. All language
versions of the draft Council Decision on the signing and provisional
application of the Framework Agreement were published on 25 July;
this triggered the usual 8-week window for enhanced parliamentary
scrutiny of JHA issues to commence under the JHA Code of Practice.
Unfortunately, the Government had not reached the conclusion that
the JHA opt-in had been triggered at that point owing to the
uncertainty regarding precisely which Union Programmes would be
eligible to participate in pursuant to the Framework Agreement.
Consequently, Parliamentary Scrutiny Committees have not had the
proper opportunity to consider and opine on the JHA aspects.
"All language versions of the draft Council
Decision on conclusion of the Framework Agreement, the second
relevant Council Decision here, were published on 3 September
— meaning that the usual 8-week window for enhanced parliamentary
scrutiny of JHA issues within that Decision on conclusion runs
until 29 October, and is thus still 'open' for your Committee
to opine.
I am now resubmitting a supplementary EM to your
Committee to allow your Committee to scrutinise the opt-in aspects
of this agreement specifically — with regards to the proposed
Council Decisions both on (i) signing and provisional application
and (ii) conclusion of this Agreement. In all other points of
substance this Supplementary EM mirrors our original EM of 22
August. We would welcome a view from your Committee on the JHA
aspect specifically of these two Council Decisions.
"The two documents follow in sequence, but to
set out their slightly separate timings clearly:
— "The three-month window for the
Government to indicate its final decision on whether to opt-in
on the Council Decision on signing and provisional application
closes on 25 October. Although the 8-week window for scrutiny
has closed, we would welcome a view from your Committee before
that date. I appreciate that this is a short timescale, but am
keen to offer your Committee some opportunity to give a view on
this point.
— "The three-month window for the
Government to indicate its final decision on whether to opt-in
on the Council Decision on conclusion closes on 3 December.
The usual 8-week window for Parliament to opine on this document
started on 3 September with the publication of the last language
version (all language versions of this document were published
on the same date), and thus ends on 29 October. Again, I regret
that Parliament was not notified sooner, but here there is a marginally
longer window for your Committee to give Government its view on
the opt-in.
"I regret that this notification that the opt-in
is engaged comes so late, and would like to assure you that my
officials continue to work to ensure that analysis regarding the
JHA opt-in is completed and decisions are taken as early as possible.
I and my officials stand ready to provide any further information
your Committee would find helpful."
Conclusion
11.19 The proposal raises no political questions
(unlike the latest proposal on Ukraine, which we discuss elsewhere
in this Report).[60]
However, this is not so with regard to the legal issues.
11.20 We note the Minister's comments on the applicability
of the opt-in Protocol. As we have stated previously and often,
we do not consider the Protocol to apply in the absence of a Title
V legal base. The Minister will also know that, should the Government
succeed in adding a Title V legal base, we consider that the three
months should run from the date upon which the new legal base
was added, for the reasons stated in the EU Kosovo and EU-Ukraine
agreements.[61]
[62]
11.21 We look forward to hearing from the Minister
when these matters have been resolved, and to him to ensure that
there are at least two months between then and when the Council
is due to consider these Council Decisions, so that there is sufficient
time to consider the opt-in implications.
11.22 In the meantime, we shall retain the documents
under scrutiny.
54 COM(06) 724 l of 4 December 2006. Back
55
GAERC conclusions of 5 March 2007. Back
56
Presidency Conclusions - Brussels, 21/22 June 2007, Doc 11177/07. Back
57
Presidency Progress Report on Strengthening the European Neighbourhood
Policy, Doc 10874/07. Back
58
Conclusions on Strengthening the European Neighbourhood Policy,
adopted by the Council (General Affairs and External Relations)
on 18 June 2007, Doc 11016/07. Back
59
COM(2011) 303 final of 25 May 2011. Back
60
See headnote: (35362-5) -: chapter 5 of this Report. Back
61
See (34868-9) -: HC 83-xvii (2013-14), chapter 4 (16 October
2013). Back
62
See (35362-5) -: chapter 5 of this Report. Back
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